DHS Ends Protected Immigration Status for 2,500 Nicaraguans

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Some 2,500 Nicaraguans living in the United States under a protected immigration status will lose their work authorization and be asked to change their status or leave the country by January 2019.

The U.S. Department of Homeland Security (DHS) announced that it will not renew the Temporary Protected Status (TPS) designation for Nicaragua after nearly two decades, and is extending the status for 57,000 Hondurans for six months, at which time their fate will be considered.

TPS was created by Congress in 1990 and offers foreign nationals temporary permission to live and work in the U.S., instead of being returned to countries that are deemed unsafe after facing natural disaster, armed conflict or other emergency situations. Nicaraguans and Hondurans were provided the provisional status and protected from deportation after Hurricane Mitch hit Central America in 1998, and their TPS has been routinely renewed ever since.

Nicaraguans and Hondurans in the United States under TPS are required to reapply for employment authorization documents (EADs) to continue working beyond Jan. 5, 2018, the original expiration date of TPS for the two groups.

"As TPS expires for various countries, key employees that have been with the organization for years could be without work authorization and employers could have to fill unanticipated vacancies," said Lynn Shotwell, executive director of the Council for Global Immigration, an advocacy organization supporting workforce mobility and employment-based immigration based in Alexandria, Va., and an affiliate of the Society for Human Resource Management.

Employers may not even know if they have TPS recipients in their workforce but need to be mindful of antidiscrimination provisions of immigration law. Employers should not attempt to determine who is or is not a TPS recipient by looking at employment verification records or making inquiries if workers have not volunteered that information, Shotwell said. Neither should employers terminate employees merely in anticipation that they may lose their work authorization at a future date.

"If your organization has known TPS recipients, it is reasonable to do workforce planning around how those positions will be filled if those employees lose work authorization," Shotwell said.

TPS beneficiaries from El Salvador, Haiti and Honduras account for more than 90 percent of an estimated 325,000 immigrants from 10 TPS-designated countries residing in the United States. Other TPS countries include Nepal, Somalia, South Sudan and Syria.

The decision by DHS follows a determination from the State Department that conditions in Central America and Haiti have improved to the point that TPS for those countries' nationals is no longer necessary. That decision does not bode well for the approximately 50,000 Haitians with TPS whose protection expires in late January, and almost 200,000 Salvadorans whose protection expires in March. DHS has until Thanksgiving Day to announce its plans for Haitians with TPS—granted after a 2010 earthquake devastated the island nation's capital, Port-au-Prince. The agency must make a decision by Jan. 8 regarding TPS for Salvadorans—initiated in response to the 2001 earthquakes in that country.

A DHS spokesman said that no determinations have been made in those cases yet.

Workforce Impact

The U.S. Chamber of Commerce asked DHS to keep TPS in place for countries with large populations living in the United States like El Salvador, Haiti and Honduras, raising concerns about work authorization ending for hundreds of thousands of workers.

Neil Bradley, a senior vice president and the chief policy officer for the chamber, argued that industries such as construction, food processing, hospitality and home health-care services will be greatly affected if nationals from El Salvador, Haiti and Honduras lose work authorization.

"Terminating these designations would end the work authorization of many key employees … [and] adversely impact several key industries where TPS recipients make up a significant amount of the workforce," Bradley said.

According to the Center for Migration Studies, a New York City-based think tank, the labor force participation rate of the TPS population from El Salvador, Haiti and Honduras ranges from 81 to 88 percent, well above the rate for the total U.S. population (63 percent) and the foreign-born population (66 percent). The five leading industries in which TPS beneficiaries from these countries work are construction (51,700), restaurants and food services (32,400), landscaping (15,800), child daycare (10,000), and grocery stores (9,200).

"With regard to the construction industry, ending the TPS designation for these three countries will exacerbate existing labor shortages in the industry at a time when such workers are essential to hurricane recovery efforts in states like Texas and Florida," Bradley said. "There are an estimated 50,000 construction workers from these three countries who have TPS, many of them residing in these two states."

Time to Reevaluate TPS?

The Trump administration has indicated it will take a harder line on TPS than previously, primarily because the program is supposed to be temporary and was never intended to bestow long-term residency.

Sen. Charles Grassley, R-Iowa, told DHS in a letter Oct. 30 that immigrants with temporary protected status are taking jobs that could be filled by unemployed U.S. workers and that the program needs to be reviewed.

"While this form of protection is referred to as temporary, in reality, certain countries have been designated for TPS for almost more than 20 years, and in one case, more than 26 years," said Andrew Arthur, a resident fellow in law and policy for the Center for Immigration Studies, a Washington, D.C.-based think tank. The longest TPS designation still in effect is for nationals of Somalia, who've been eligible for protected status since 1991.

Some designations have been shorter in duration. The Obama administration added Guinea, Liberia, and Sierra Leone to the TPS list following the deadly Ebola outbreak in those nations in 2014, but decided in September 2016 to let it expire in May 2017 since the Ebola crisis had ended.

In September, DHS announced that it is terminating TPS for about 1,000 nationals of Sudan as of November 2018, but extended TPS for South Sudan for 18 months until May 2019 "because the ongoing armed conflict and extraordinary and temporary conditions that prompted the 2016 TPS redesignation have persisted."

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Members may download one copy of our sample forms and templates for your personal use within your organization. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organization’s culture, industry, and practices. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRM’s permission. To request permission for specific items, click on the “reuse permissions” button on the page where you find the item.